In O’Connell v. Turner Construction Co., an employee of a sub-subcontractor filed a negligence action after he was injured while working with steel cables at the construction site. His employer was hired by the subcontractor which had been hired directly by the owner of the school. All of the plaintiff’s claims, except those against the construction manager, were settled and dismissed. The third amended complaint alleged that the construction manager was liable for construction negligence under Section 414 of the Restatement (Second) of Torts based on its “operational and/or supervisor control” over trade contractors, and that the construction manager was a “possessor of land” under Section 343 of the Restatement (Second) of Torts. The trial court granted the construction manager summary judgment on both counts and the plaintiff appealed.
The First District Appellate Court affirmed on both counts, holding that the construction manager could not be held liable under Section 414 when it did not entrust the work to the plaintiff’s employer and that it was not a “possessor of land” under Section 343. In regard to the plaintiff’s section 414 theory, the court iterated that the plaintiff was employed by a subcontractor hired by another subcontractor previously hired by the school and that there was no written contract between the construction manager and any of the subcontractors. Although the construction manager may have aided the school in handling the construction bids and drafting the contracts, it did not actually select the subcontractors or sub-subcontractors, and therefore, did not entrust the work to others as required for Section 414 liability. Next, turning to the plaintiff’s Section 343 theory, the court emphasized that the construction manager was not a “possessor” of the construction site because it could not exclude others from the premises, and it did not control or intend to exercise control of the premises. The court noted a distinction between control of the premises and control over construction activities and workers at the site.